Liggett v. Young

The plaintiff, Ronald Liggett, d/b/a Lig-gett Construction Company, brings this appeal to challenge a trial court summary judgment ruling in a contract dispute arising from Liggett’s construction of a private residence for his attorney, defendant Dean Young, and Young’s wife, Elisabeth. To address whether the parties’ attorney-client relationship affects the resolution of this dispute, we granted transfer, and now reverse the trial court.

In 2001, when sued by a supplier of bricks and materials used in the construction of the Youngs’ home, Liggett initiated a third-party complaint against the Youngs. The Youngs’ answer included a counterclaim against Liggett seeking damages for allegedly negligent and untimely performance of the work under the building contract. After further counterclaims and motions for summary judgment were presented, the trial court granted partial *180summary judgment in favor of the Youngs as to all of Liggett’s claims against them. Expressly finding no just reason for delay, the trial court entered final judgment in favor of the Youngs and against Liggett as to all of Liggett’s claims against the Youngs. Liggett appealed, and the Court of Appeals affirmed. Liggett v. Young, 851 N.E.2d 968 (Ind.Ct.App.2006).

Among Liggett’s issues on appeal, we find one to be dispositive: “Whether the trial judge erred in finding no genuine issue of material fact with respect to the enforceability of a contract drafted and entered into between an attorney and his builder/client.” Appellant’s Br. at 1.

Before addressing this issue, however, we note the somewhat unconventional procedural posture of this case in the trial court. The motion for partial summary judgment filed by the Youngs was supported only by Dean Young’s affidavit referring to the parties’ building contract, asserting full payment, and attaching the contract as an exhibit. Opposing the Youngs’ motion, Liggett’s affidavit asserted the existence of unpaid additional labor and materials from change orders; attached exhibits consisting of plans and specifications related to the construction; and asserted that at the time of the contract, Dean Young was serving as Lig-gett’s attorney and had assured Liggett that “that there would be no problems” as a result of Young’s “dual status” as Lig-gett’s attorney and party to the contract. Appellant’s App’x at 59. Finding it undisputed that “the Youngs have paid the full price called for under the contract,” the trial court granted the Youngs’ motion for partial summary judgment. The court did not address Liggett’s assertions regarding the fact or implications of Dean Young’s “dual status” as both a contracting party with and lawyer for Liggett. Following the appointment of a special judge, the appearance of new counsel for Liggett, and a series of further pleadings, Liggett filed a motion for summary judgment. Finding that it was “in effect” a motion to reconsider the previous ruling on the Youngs’ motion for partial summary judgment, Appellant’s App’x at 12, the trial court undertook such reconsideration and addressed the new arguments presented by Liggett, but declared itself to be “constrained to review the record and evidence as same existed” on the date of the initial order granting partial summary judgment, and did not consider any new designated evidence submitted to support or oppose Liggett’s motion for summary judgment. With a detailed explanatory order, the trial court denied Liggett’s summary judgment and affirmed the previous order granting the Youngs’ motion seeking partial summary judgment as to Liggett’s claims against the Youngs.

1. Professional Conduct Rule 1.8

Liggett’s appeal contends in part that the Youngs failed to carry their burden on summary judgment to prove that the construction contract was not void by reason of Indiana Professional Conduct Rule 1.8, which restricts an attorney’s ability to engage in transactions with the attorney’s client. Liggett urges that Dean Young violated this rule by drafting the construction contract for the project, and that attorney/client transactions are presumptively invalid as the product of undue influence. In response, the Youngs contend (a) that Liggett’s designation of evidence on summary judgment, claiming an entitlement to receive the contract price plus an additional amount, is inconsistent with his claim that the contract should be found void, and (b) that the construction contract was a standard commercial transaction to which Rule 1.8 does not apply.

Summary judgment is appropriate only when the designated evidence *181shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Indiana Trial Rule 56(C); Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 575 (Ind. 2007); Gunkel v. Renovations, Inc., 822 N.E.2d 150, 152 (Ind.2005); Woman Enterprises, Inc. v. Boone County Solid Waste Mgmt. Dist., 805 N.E.2d 369, 373 (Ind.2004). We construe all facts and reasonable inferences in favor of the non-moving party. Gunkel, 822 N.E.2d at 152. Furthermore, we carefully review summary judgment decisions to ensure a party is not improperly denied its day in court. Id.; Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003); St. Vincent Hosp. and Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 702 (Ind.2002).

At all relevant times (from the contract date of July 2, 1999, through the date the Youngs filed their complaint, April 2, 2001), Rule 1.8(a) of the Indiana Rules of Professional Conduct provided as follows:

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in

writing to the client in a manner which can be reasonably understood by the client;

the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and

the client consents in writing thereto.1

The Comment to Rule 1.8, as relevant to subsection (a), emphasized the general principle that “all transactions between client and lawyer should be fair and reasonable to the client,” and added that, “[i]n such transactions a review by independent counsel on behalf of the client is often advisable.” Ind. Prof. Cond. R. 1.8 cmt. (1999). But the Comment also noted an exception:

Paragraph (a) does not, however, apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or brokerage services, medical services, products manufactured or distributed by the client, and utilities services. In such transactions, the lawyer has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary and impracticable.

Id.2 The parties disagree regarding whether their transaction falls within this “stan*182dard commercial transaction” exception. The Youngs argue that they fall within the exception because the transaction involves a product and/or service that Liggett, a building contractor, generally markets to others. Liggett contends that it does not apply because the dispute centers on the interpretation of the construction contract drafted by his lawyer, Dean Young.

Regardless whether this transaction does not qualify as a standard commercial transaction and thus subjects Dean Young to the requirements of Rule 1.8(a), the Rules of Professional Conduct have limited application outside of the attorney disciplinary process. On the dates relevant to this case, the Preamble to the Indiana Rules of Professional Conduct stated in part:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability, but reference to these rules as evidence of the applicable standard of care is not prohibited. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanction*183ing a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.

Ind. R. Prof. Cond. Preamble (1999-2004).3

Prior decisions are inconsistent regarding whether this language in the pre-2005 Preamble should be applied to preclude resort to Rule 1.8(a) in resolving the issue of civil liability. Two opinions have indicated that violation of the Rules of Professional Conduct may serve as a basis for civil liability. See Trotter v. Nelson, 684 N.E.2d 1150, 1153 (Ind.1997) (“The Rules at issue ... are explicit judicial declarations of Indiana public policy and, akin to contravening a statute, agreements in violation of these rules are unenforceable.”); Picadilly, Inc., v. Raikos, 582 N.E.2d 338, 342 (Ind.1991) (“An attorney who breaches any of these duties may face both disciplinary action and a legal malpractice claim.”). But neither of these cases address the above-quoted Preamble language. On the other hand, in Sanders v. Townsend, 582 N.E.2d 355 (Ind.1991), this Court explicitly declared that this language in the Preamble “make[s] it clear that [the Rules of Professional Conduct] do not purport to create or describe any civil liability ...” Id. at 359.

In Sanders, the clients sued their lawyer, asserting that the lawyer breached fiduciary duties by coercing them into an inadequate settlement. This Court affirmed summary judgment for the lawyer, noting that the client’s contention was that the lawyer “breached his fiduciary duties to them ... in violation of the Indiana Code of Professional Responsibility ...” Id. at 358-59. We held “that to subject attorneys to suit for constructive fraud based on a violation of the fiduciary duties that are regulated under the Rules of Professional Conduct ... would create unreasonable, unwarranted, and cumulative exposure to civil liability.” Id. at 359. We infer from the reference to “cumulative exposure to civil liability” that Sanders stands for the proposition that, while civil liability in damages may not be predicated on a claimed violation of a specific professional conduct rule relating to fiduciary duties, a client nevertheless may seek damages if the attorney’s conduct constitutes a breach of fiduciary duty at common law.4

We conclude that this holding from Sanders prevails over any statements to the contrary in Picadilly and Trotter because of the language of the Preamble and its express consideration in Sanders and because there exists an independent common law basis, apart from violation of Rule 1.8, on which a client may seek recourse in damages.

2. Common Law Attorney-Client Fiduciary Duty

Claims involving separate attorney-client transactions have long been gov*184erned by principles of Indiana law that guide the resolution of this appeal.

Indiana case law recognizes that transactions entered into during the existence of a fiduciary relationship are presumptively invalid as the product of undue influence. Transactions between an attorney and client are presumed to be fraudulent, so that the attorney has the burden of proving the fairness and honesty thereof.

Matter of Smith, 572 N.E.2d 1280, 1285 (Ind.1991). See also Sweeney v. Vierbuchen, 224 Ind. 341, 348, 66 N.E.2d 764, 766-767 (1946); Olds v. Hitzemann, 220 Ind. 300, 305, 42 N.E.2d 35, 37-38 (1942); Lucas v. Frazee, 471 N.E.2d 1163, 1166-67 (Ind.Ct.App.1984); Briggs v. Clinton County Bank & Trust Co., 452 N.E.2d 989, 999 (Ind.Ct.App.1983); Blasche v. Himelick, 140 Ind.App. 255, 259-260, 210 N.E.2d 378, 381 (1965); Castle v. Kroeger, 111 Ind.App. 43, 53-54, 39 N.E.2d 459, 463-464 (1942).

This statement of general principle does not endeavor to specifically address standard commercial transactions between a lawyer and a client in which the lawyer does not render legal services. But, parallel to the “standard commercial transaction” exception noted in the Comment to Professional Conduct Rule 1.8, such transactions are likewise generally considered as not subject to the common law prohibition against attorney-client transactions. See Section 126 of the Restatement (Third) of The Law Governing Lawyers,5 particularly comment (c).

During the trial court’s consideration of the Youngs’ motion for partial summary judgment, and Liggett’s later summary judgment motion that was treated as a motion to reconsider the Youngs’ motion, the designated matters considered by the court did not expressly assert that Dean Young had prepared the contract in question. The parties’ construction contract, however, was in the form of a pre-printed “Building, Construction and No-Lien Agreement” approved by the Indiana State Bar Association, the header of which declared: “the selection of a form of instrument, filling in blank spaces, striking out provisions and insertion of special clauses, constitutes the practice of law and should be done by a lawyer.” Appellant’s App’x at 32, 51. And Liggett’s affidavit in *185opposition to the Youngs’ motion for partial summary judgment specifically asserts that Dean Young drafted Paragraph 12 of the construction contract, Appellant’s App’x at 59, which assertion the Youngs do not dispute. Liggett’s affidavit also asserted that at the time the contract was entered, Dean Young was serving “as Lig-gett’s personal attorney.” Appellant’s App’x at 59. The Youngs did not respond to that assertion in the summary judgment proceeding, and acknowledge that at the time of the contract’s execution, Dean Young “was acting as the attorney for Liggett on an unrelated matter.” Appel-lees’ Br. at 2.

The designated matter considered by the trial court does not include any evidence showing that Dean Young’s transaction with his client Ronald Liggett was fair and honest, or was a standard commercial transaction that should be exempted from the common law presumption of invalidity due to undue influence. Nor do the Youngs designate any materials to overcome the presumption. And while Liggett’s initial opposition to the Youngs’ partial summary judgment motion did not expressly assert any claim of presumed invalidity, unfairness, or dishonesty, his supporting affidavit did assert Dean Young’s dual status as both Liggett’s attorney and party to the contract. In Liggett’s subsequent motion for summary judgment (which the court treated as a motion for reconsideration), he expressly raised issues of “illegality and constructive fraud.” Appellant’s App’x at 97. Noting both Dean Young’s dual status and that Young was responsible for drafting the contract, Liggett asserted that Rule 1.8(a) applies to render the contract void as an illegal contract, id. at 108-110, or as a constructive fraud, id. at 110-111.

While excluding the further evidentiary materials supporting and opposing Lig-gett’s motion for summary judgment, the trial court did acknowledge that “Liggett contends that the written contract should be declared void based upon the fact that Young was serving as Liggett’s attorney on unrelated matters.” Addressing this claim, the trial court found that (a) in responding to the Youngs’ summary judgment motion, Liggett had not expressly asserted that the contract was void but had affirmed the validity of the contract and claimed that he had completed his contractual obligations; and that (b) even “if Liggett had made a timely challenge to the validity of the written contract, such an argument would fail.” After quoting the “standard commercial transactions” exclusion described in the Comment to Rule 1.8., App’x at 16-17, the trial court concluded:

26. The evidence before the Court establishes that Liggett was a building contractor. With respect to the subject matter of this case, the Youngs were the clients and Liggett was the professional. Consequently, Rule 1.8 of the Indiana rules of Professional Conduct does not apply.

Appellant’s App’x at 16-17.

As a preliminary matter, we observe that Liggett did not, by asserting completion of his obligations under the contract, forego his claim that the construction contract was void due to Dean Young’s dual status in the transaction. A party may plead inconsistent, alternative claims or theories. Ind. Trial Rule 8(E)(2); Reeder v. Harper, 788 N.E.2d 1236, 1243 n. 5 (Ind.2003); Cahoon v. Cummings, 734 N.E.2d 535, 542 (Ind. 2000); Foster v. Evergreen Healthcare, Inc., 716 N.E.2d 19, 28 (Ind.Ct.App.1999). Of greater significance, however, is that Liggett’s claims against the Youngs are for materials and labor not included in the original base construction contract but re-*186suit instead from additional items that Lig-gett claims were performed at the Youngs’ request. These claims derive from custom language drafted by Young and inserted subparagraph (b) in paragraph “12. ADDITIONAL COVENANTS” of the pre-printed contract. This sub-paragraph 12(b) states: “(b) Subject to changes which from time to time may be made following construction [sic] between Builders and Owners, and, where necessary, following consultation with Owners’ construction/mortgage lenders.” Appellant’s App’x at 34.

With respect to Liggett’s contentions regarding the dual status of Dean Young as both a party to the contract with Liggett and as Liggett’s attorney at the time, we conclude that the designated evidence on the Youngs’ motion for partial summary judgment did not affirmatively establish the absence of a genuine issue of material fact as to whether, in light of Dean Young’s fiduciary relationship as Liggett’s attorney, the building contract transaction was fair and honest so as to overcome the common law presumption that the contract was fraudulent. Nor was there designated matter showing that the transaction, the centerpiece of which was a contract allegedly prepared and modified by attorney Dean Young, should as a matter of law be treated as a standard commercial transaction to which the common law presumption did not apply. Under such circumstances, the Youngs are not entitled to partial summary judgment foreclosing Liggett’s claims against them.

Having previously granted transfer, thereby automatically vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A), we now reverse both (a) the trial court’s final judgment in favor of the Youngs and against Liggett as to all of Liggett’s claims against the Youngs and (b) the grant of the Youngs’ motion for partial summary judgment as to Liggett’s claims. This cause is remanded to the trial court for resolution of the remaining claims of each party in a manner consistent with this opinion.